What do eggs and frac sand have in common? Both are somewhat rounded in shape, but other than that, very little to nothing. Except that they’re both extremely profitable articles of interstate commerce.
This past November, a majority of California voters went to the polls and passed a statewide ballot initiative. Starting in 2015 their state law will “require all eggs sold in the state to come from chickens raised in cages where birds have enough room to spread their wings without touching another bird.” (Spokesman March 12, 2014)
Gov. Terry Branstad, along with attorneys general from five other states (MO, KT, NE, OK, AL) are now suing the state of California for listening to popular demand. Their basis for the lawsuit: The new California law will infringe on corporations’ “right” to interstate commerce.
In her book Gaveling Down the Rabble, corporate Anthropologist Jane Anne Morris helps shine a much-needed light on this issue. Between the years 1789 and 2005, 321 state laws have been struck down by the U.S. Supreme Court on commerce clause grounds. This represents more than 25 percent of all state laws struck down for any reason by the U.S. Supreme Court.
“Under the commerce clause, the Supreme Court not only tells states and localities which laws are unconstitutional and which are not, but also what reasons for laws are appropriate (and which are not) ... Supreme Court justices ultimately decide what is arbitrary, reasonable, an undue burden, etc.” explains Morris.
Iowa Lt. Gov. Kim Reynolds stated in a recent press release, “California’s law adversely affects Iowa agricultural jobs, and we believe its negative effects and regulations felt by egg producers across the country is a violation of the commerce clause. We’re pleased that Democrats and Republicans are coming together in support of agriculture and against onerous regulations.”
The egg lawsuit is instructive when we look at it from a slightly different angle, and one that hits much closer to home. Let’s say that we pass a law regulating the extraction of frac sand. What will stop a frac-sand corporation, or a fracking-heavy state like North Dakota, from suing our county, or our state, on the basis of “onerous regulations” (to use our Lt. Governor’s own words)? This is what a regulation is meant to do after all -- to allow and restrict, to be onerous.
History instructs us that the current framework is not adequately representing communities. Despite an abundance of regulatory agencies and well-meaning politicians working within the confines of current law, we have seen lawsuit after lawsuit launched by predatory corporations and their industry front-groups. Longmont CO, Dryden NY, South Fayette Township PA, Mount Pleasant PA, all examples of communities with “onerous regulations” and zoning laws that have attracted the ire of big business who seek to overturn local democratic decision-making if it impedes profit. Would restrictions put on frac-sand mining withstand the track record of the U.S. Supreme Court over the last 125 years?
Eggs or frac sand, each are just another profitable item of interstate commerce to be used by Big Money to trump the people’s will. Let us be bolder here, and take a different approach. I urge our Board of Supervisors to seriously consider a rights-based ordinance and declare fundamental rights for our community and for all citizens of Winneshiek County.
(submitted to Decorah Newspapers)